And, as Dean Brooks notes, the piece she has selected, Judge Anne Derrick’s In the Matter of a Fatality Inquiry Regarding the Death of Howard Hyde, Report Pursuant to the Fatality Investigations Act (2010), "pushes at the boundaries of what most of us would consider scholarship." However, Brooks contends that it is "the most interesting piece of scholarly work motivated by equality considerations that has crossed my desk in the last several months." Indeed, Brooks argues that "the report’s 80 recommendations are essential ground for equality scholars with an interest in policy-relevant scholarship."

With this selection, Brooks addresses aspects of equality that tend to be side-lined and in a form that is often neglected. It's a fitting start for the new section on Equality from Jotwell: The Journal on Things We Like (Lots). Brooks' co-editor of the Equality Section is Professor Sonia Lawrence, Director, Institute for Feminist Legal Studies York University – Osgoode Hall Law School. They've assembled a crew of contributing editors (and I feel humbled to be included) from around the globe, so the work highlighted is sure to transcend the usual "equal protection doctrine revisionings" that have become ubiquitous in US scholarship. The Equality "jots" will run monthly, but in the interim Jotwell has a great sections on Constitutional Law, Jurisprudence, and other areas of law.

Article I, section 10 of the Constitution provides that "no state shall" "pass any Bill of Attainder, ex post facto Law, or Law impairing the Obligation of Contracts." That last prohibition is known as the Contracts Clause - - - or is it the Contract Clause?

Professor Jay Wexler reveals that federal courts are about five times more likely to use the term "Contract Clause" than "Contracts Clause" - - - 4800 to 900 cases in the "allfeds" database.

But as Wexler notes, the Fourth Circuit has devoted a footnote to deciding the issue. Wexler is exceedingly knowledgeable about judicial footnotes and we've previously discussed his useful taxonomy. But how would this footnote be classified? Footnote 2 in the opinion in Crosby v. City of Gastonia, decided March 10, 2011, stated:

The Clause provides, in pertinent part, that "[n]o State shall . . . pass any . . . Law impairing the Obligation of Contracts." U.S. Const. art. I, § 10, cl. 1. The Supreme Court and nearly all federal courts have, over the years, inconsistently denominated this key provision of Article I as both the "Contract Clause" and the "Contracts Clause." Because the text of the Constitution speaks of the obligation of "contracts" in the plural, we will use that form of the noun to refer to the Clause in this opinion.

(ellipses in orginal).

Wexler notes that Justice O'Connor was sitting by designation on the Fourth Circuit panel, but also expresses his opinion about the relevance of the singular and plural designations for the clause in question. Wexler's post - - - and his new blog "Odd Clauses Watch" is well worth a read.

Like many who work at a public university, I have been made aware that my email may be subject to a FOIA request. But I have assumed that such requests would pertain to personnel decisions about colleagues or student matters. However, it seems that political criticism may also provoke a records request from those being criticized.

William Cronon, (pictured right), is a history professor at the University of Wisconsin. On March 15, he started his blog, Scholar as Citizen, discussing the historical and contemporary origins of the Wisconsin legislation prohibiting public employee collective bargaining. His op-ed published in the NYT on March 21 argues that "Republicans in Wisconsin are seeking to reverse civic traditions that for more than a century have been among the most celebrated achievements not just of their state, but of their own party as well."

On March 17, he received a request from the Republican Party under the "state FOIA":

We are making this request under Chapter 19.32 of the Wisconsin state statutes, through the Open Records law. Specifically, we would like to cite the following section of Wis. Stat. 19.32 (2) that defines a public record as “anything recorded or preserved that has been created or is being kept by the agency. This includes tapes, films, charts, photographs, computer printouts, etc.”

Thank you for your prompt attention, and please make us aware of any costs in advance of preparation of this request.

Sincerely,

Stephan Thompson

Republican Party of Wisconsin

608-257-4765

The most recent Court opinion regarding a First Amendment challenge to a state FOIA request was the June 2010 decision in Doe v. Reed, in which the Court considered a request under Washington's state open records law to reveal the signatories for a ballot initiative to revoke the same-sex civil union law. In Reed, the Court articulated an "exacting scrutiny" standard, "requiring a ‘substantial relation’ between the disclosure requirement and a ‘sufficiently important’ governmental interest." To withstand this scrutiny, “the strength of the governmental interest must reflect the seriousness of the actual burden on First Amendment rights.”

In Reed, the government interests were "preserving the integrity of the electoral process by combating fraud, detecting invalid signatures, and fostering government transparency and accountability" and that these sufficed to defeat the First Amendment challenge to the disclosure of referendum signatures.

Here, the government has not complied with the request and not yet had an opportunity to articulate what any of its interests might be in disclosing the contents of Professor Cronon's emails that contain words such as collective bargaining, rally, or union.

Hillary Clinton, speaking as US Secretary of State, condemned violence against members of the press in Egypt, noting that "freedom of the press" is one of the pillars of an "open and inclusive society."

Meanwhile, in the United States itself, a complaint in federal court has been filed this week against former president Jimmy Carter and Simon & Schuster, the publisher of Carter's book, Palestine: Peace Not Apartheid. The cause of action is noteworthy: consumer protection statutes in New York prohibiting deceptive acts in the conduct of business and trade. The complaint alleges:

5. Plaintiffs wish to be clear about what this lawsuit is not about. It is not in any way an attempt to challenge Defendant JIMMY CARTER's right to write a book, or Defendant SIMON & SCHUSTER's right to publish a book which serves as a forum for Carter to put forward his virulently ant-Israeli bias or any other agenda he or his financial backers wish to put forward. Nor do Plaintiffs challenge his right to use falsehood, misrepresentations and omissions, misleading statements, or outright lies, all of which characterize this book, to further his agenda. Indeed, Plaintiffs fully recognize that, such an agenda from Defendant JIMMY CARTER should come as no surprise, given his well known bias against Israel and the interests of Israel's sworn enemies who have given millions of dollars to support the Carter Center and Defendant JIMMY CARTER's work.

6. Rather, Plaintiffs bring this action to challenge Defendants' actions in deceiving the public by promoting and selling this Book as a factually accurate account in all regards of the events its purports to depict, rather than truthfully and accurately promoting and selling it as the anti-Israel screed that it is, intentionally presenting untrue and inaccurate accounts of historically recorded events, as witnesses to and participants in such events pointedly have come forward to declare. This lawsuit challenges the Defendants actions in attempting to capitalize on Carter's status as a former President of the United States to mislead unsuspecting members of the reading public who thought they could trust their former President to tell the truth.

7. The Plaintiffs are members of the reading public who thought they could trust a former President of the United States and a well-established book publisher to tell the truth and who paid to get the truth from the Defendants, but were deceived when they learned that the Book is characterized instead by falsehoods, misrepresentations, misleading statements,omissions of material facts, and outright lies designed to mislead and misstate the facts concerning the important subject it purports to address and the underlying historical record.

The Complaint then proceeds to list specific instances of facts as portrayed in the book and seeks to refute those facts. A representative from Simon and Schuster, via the Washington Post, characterized the complaint as "a chilling attack on free speech that we intend to defend vigorously.”

North of the US Border, the Supreme Court of Canada considered the companion cases of Canadian Broadcasting Corporation v. Canada (Attorney General), 2011 SCC 2, and Canadian Broadcasting Corporation v. Canada,2011 SCC 3, which involve "the interrelationship of freedom of the press, the open court principle and the fair administration of justice." At issue in the Attorney General appeal was the constitutionality of rules prohibiting broadcasting recordings of hearings and on conducting interviews, filming and taking photographs in court; the other appeal involved a prohibition on broadcasting of a video recording tendered in evidence at trial. A good discussion of the cases is available from our colleagues at the Canada Supreme Court blog. In both cases, the Supreme Court of Canada upheld the constitutionality of the banning of the press:

The right to freedom of expression is just as fundamental in our society as the open court principle. It fosters democratic discourse, truth finding and self‑fulfilment. Freedom of the press has always been an embodiment of freedom of expression. It is also the main vehicle for informing the public about court proceedings. In this sense, freedom of the press is essential to the open court principle. Nevertheless, it is sometimes necessary to harmonize the exercise of freedom of the press with the open court principle to ensure that the administration of justice is fair. . . . . this Court must determine whether certain rules are consistent with the delicate balance between this right, this principle and this objective, all of which are essential in a free and democratic society.

This balancing is familiar to US scholars as the First Amendment/ Sixth Amendment conflicts in landmark cases such as Sheppard v. Maxwell.

The continuing controversy surrounding Wikileaks tests commitment to freedom of the press in many nations. The Guardian of the UK, which has published much of the Wikileaks material, is an excellent source of updates and information. In a comment today, journalist Clay Shirkey notes the ways in which Wikileaks "freedom of the press" is a transnational phenomenon, not bound by specific national laws, and presumably constitutional norms. Both The Guardian and the New York Times have published books about the newspapers dealings with Wikileaks: The Guardian book is Wikileaks: Inside Julian Assange's War on Secrecy, and is available as an ebook and forthcoming in paperback. The NYT book, Open Secrets: Wikileaks, War, and American Diplomacy, is available only as an ebook. The NYT Magazine published an adapted introduction to Open Secrets by journalist Bill Keller.

ConLawProfs teaching freedom of the press this semester should be able to use any - - - or all - - - of these situations to foster a great class discussion or a more focused class project.

UPDATE: The Michigan Assistant AG has apparently taken a "leave of absence."

The CNN report by Anderson Cooper is worth watching:

The blog "Chris Armstrong Watch," by the Assistant AG is entirely devoted to Chris Armstrong, the student body president. The Michigan student newspaper has quoted the statement of Michigan AG Mike Cox:

“All state employees have a right to free speech outside working hours,” Cox said in a statement yesterday, according to the Free Press. “But Mr. Shirvell’s immaturity and lack of judgment outside the office are clear.”

For ConLawProfs looking for an in-class exercise testing the limits of Pickering as well as discussing Garcetti v. Ceballos this would make good material.

In time for the new Court term, the incredibly useful and wonderful SCOTUSblog has revamped its look and its organization - - - in a new version it is calling "SCOTUSBlog 4.0."

The SCOTUS Wiki will be phased out, a smartphone version is available, the statistics are on the front "page", and the overall shift is "from a focus on news of
the moment to also serving as an archival resource regarding all of the
merits cases and the serious cert. petitions."

The Washington Post has launched its feature "Top Secret America." The project consists of three days of investigative reporting articles, the first one today entitled "A hidden world, growing beyond control."

The project also includes a searchable online database detailing private contractors and specific locations. The Editorial explanation is worth reading; here is a bit of it:

The articles in this series and an online database at topsecretamerica.com depict
the scope and complexity of the government's national security program
through interactive maps and other graphics. Every data point on the Web
site is substantiated by at least two public records.

Because of
the nature of this project, we allowed government officials to see the
Web site several months ago and asked them to tell us of any specific
concerns. They offered none at that time. As the project evolved, we
shared the Web site's revised capabilities. Again, we asked for specific
concerns. One government body objected to certain data points on the
site and explained why; we removed those items. Another agency objected
that the entire Web site could pose a national security risk but
declined to offer specific comments.

We made other public safety
judgments about how much information to show on the Web site. For
instance, we used the addresses of company headquarters buildings,
information which, in most cases, is available on companies' own Web
sites, but we limited the degree to which readers can use the zoom
function on maps to pinpoint those or other locations.

The feature should be of interest to anyone working on state secrets doctrine and theory. The extent of private involvement also implicates the state action doctrine and the problems with holding actors constitutionally accountable. The Washington Post explanation above also implicates First Amendment concerns.

Adopted by the Continental Congress on July 4, 1776, the Declaration of Independence is the foundational text for the July Fourth "Independence Day" national holiday in the United States. Among the discussions of the document this year, two stand out.

First, there is the colloquy between Senator Charles Grassley (R-Iowa) on Day Two of the Kagan Confirmation hearings, in which Grassley invokes the Declaration of Independence to raise the issue of Kagan's views on the Second Amendment and the Court's interpretation in Heller and McDonald:

GRASSLEY: Well, it’s basic to our Declaration of Independence that says we’re endowed by our creator with certain -- certain individual rights, among them, you know, what it says, and we aren’t endowed by our government. So the question here is, are we endowed by our Constitution with this right or did it exist before the Constitution existed? KAGAN: Well, Senator Grassley, I do think that my responsibility would be to apply the Constitution as understood and previously applied by the court, and that means as understood and -- and interpreted by the court in Heller, and that’s what I would do. So I think that the -- the fundamental legal question would be whether -- that a case would present would be whether the Constitution guarantees an individual right to bear arms, and Heller held that it did, and that’s good precedent going forward. GRASSLEY: I know the Declaration of Independence is not the law of the land, but it does express a philosophy of why we went to war and why our country exists. And you understand, I hope, that if we’re endowed by our government with certain rights, the government can take them away from us, whereas if we possess them ourselves and give them up from time to time to the government to exercise in our stead, then the government can’t take away something that’s inherently ours. Do you believe that the Second Amendment right to bear arms is a fundamental right? KAGAN: Senator Grassley, I think that that’s what the court held in McDonald. GRASSLEY: And you agree with it? KAGAN: Good precedent going forward.

[Transcript (available from WaPo here) Day Two, June 29, 2010, at 50].

Second, there is the feature from the New York Times, "Thoughts on a Declaration," in whichthe editors asked contributors to
The Stone, “What is the philosophical theme, or themes, in the Declaration of Independence that should be recalled in today’s
America?” The responses from philosophers Arthur C. Danto, Todd May, and J.M. Bernstein are then provided. While Todd May writes movingly of equality focusing on undocumented workers and Bernstein invokes Janis Joplin, the selection of three white male philosophers to answer a query about "today's America" is a rather startling statement.

[image: portraits and autographs of the signers of the Declaration of Independence, via]

The Declaration of Independence may have been exclusively signed by white men, but as we interpret the document's philosophical relevance, is this exclusivity "good precedent going forward"?

After a brief hiatus, Feminist Law Professors Blog is back with a new look. Cyber-space is not quite as "equal" without the blog's perspectives, including its famous "where are the women?" feature that calls attention to law review issues or conferences with a dearth of female participants.

Feminist Law Professors Blog also brings attention to feminist scholarship of interest to ConLawProfs. Its most recent posting, for example, highlights the work of Lisa Pruitt (pictured right) of UC Davis School of Law on "spatial inequality."

As Feminist Law Prof Bridget Crawford writes: "Pruitt's work seeks to revive legal consideration of spatial variations
in provision of government services, a concern that waned following the
Supreme Court’s 1973 decision in San Antonio Independent Schools v. Rodriguez."

Minority Witnesses
Robert Alt, Senior Fellow and Deputy Director, Center for Legal and Judicial Studies, The Heritage Foundation
Lt. Gen. William "Jerry" Boykin, United States Army (ret.)
Capt. Pete Hegseth, Army National Guard
Commissioner Peter Kirsanow, Benesch Law Firm
David Kopel, Esq., Research Director, Independence Institute
Colonel Thomas N. Moe, United States Air Force (ret.)
David Norcross, Esq., Blank Rome
William J. Olson, Esq., William J. Olson, P.C.
Tony Perkins, President, Family Research Council
Stephen Presser, Raoul Berger Professor of Legal History, Northwestern University School of Law
Ronald Rotunda, The Doy & Dee Henley Chair and Distinguished Professor of Jurisprudence, Chapman University School of Law
Ed Whelan, President, Ethics and Public Policy Center
Dr. Charmaine Yoest, President & CEO, Americans United for Life
Capt. Flagg Youngblood, United States Army

In addition to its "noteworthy" sidebar (above right) making it clear that Kagan would be the fourth woman to serve on the Supreme Court if she is confirmed, the Senate Judiciary Committee website also includes the following materials relevant to the Kagan nomination and hearing:

While Franken acknowledges he is "one of the few non-lawyers in the room," and not an academic, he nevertheless delves into constitutional theory and recent cases to support his point that the Court's decisions matter to "ordinary people." He disavows originalism by linking it with Robert Bork and ultimately concludes: "Originalism isn't a pillar of our Constitutional history. It's a talking point." He critiques Roberts' "judges as umpires" metaphor with reference to a case by the Louisiana Supreme Court in 1866. He discusses cases such as Lochner and Citizens United, but also Stoneridge, Conkright,Leegin, Iqbal,Exxon, Rapanos, Circuit City, and Ledbetter. He also mentions recent proposals to "prioritize" internet service and how that might impact the flow of information.

For those teaching summer school - - - perhaps a comparative constitutional law course outside of the States?? or a legal theory course for non-law students?? - - - this could be the foundation of a good class exercise. One could assign students to write a response or to select one of Franken's points and fully support it.

SALTLAW is the new blog of SALT, Society of American Law Teachers, self-described as a "community of progressive law teachers working for justice, diversity and academic excellence."

SALT is known for its teaching conferences, its activism on behalf of social justice issues including those in constitutional law, and its members, including those featured on the blog: Angela Harris (pictured left) and Rhonda Copelon (pictured right).

The blog announcement makes clear that the "blog is not a forum for the expression of SALT’s positions, but a
place where our members can publish commentary on emerging issues in
law, politics, and education or where they can develop arguments about
policies and problems that are persistent or seem intractable. The
SALT Board has no list of topics that should be addressed or any agenda
that it has set for this blog."

Instead, the plan is a "year-long schedule
of regular and guest contributors who will add voice to progressive
issues" and will "include both legal and non-legal issues" ranging from "conversations about the economic crisis to questions about U.S.
torture policies to discussions about the lack of diversity in baseball
management to the development of a hip-hop theory of justice."

The roster of planned bloggers is an impressive one featuring many ConLawProfs.

Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice.

But does “everyone” mean “everyone,” including those Canadians detained at Guantanamo Bay?

As excellent post by Canadian law student Daniel Del Gobbo at "The Court" (a blawg on the Canadian Supreme Court)" reviews the recent Canadian Supreme Court jurisprudence. As Del Gobbo notes, “everyone” has been previously found to include non-Canadians claiming Charter protections abroad where circumstances establish a nexus with Canada, and the plain language of section 7 extends its protection to “everyone”, not just citizens.

However, as Justice L’Heureux-Dubé rather sardonically observed in R. v. Cook, [1998] 2 S.C.R. 597, “I am not convinced that passage of the Charter necessarily gave rights to everyone in the world, of every nationality, wherever they may be, even if certain rights contain the word ‘everyone’.”

Del Gobbo goes on to discuss the jurisprudence relating to section 7's applicability to Canadians detained at Guantanamo Bay including Canadian Supreme Court's recent denial of leave to appeal in Slahi v. Canada (Justice) and Canada (Prime Minister) v. Khadr. More on Slahi here; on Khadr here.

The United States Supreme Court may have blocked the actual broadcast of the Proposition 8 trial, but the enterprising folks behind www.marriagetrial.com are re-enacting the trial, using the transcripts and the reports from bloggers and tweeters.

Starting today, we're enabling people everywhere to find and read full
text legal opinions from U.S. federal and state district, appellate and
supreme courts using Google Scholar. You can find these opinions by searching for cases (like Planned Parenthood v. Casey), or by topics (like desegregation)
or other queries that you are interested in. For example, go to Google
Scholar, click on the "Legal opinions and journals" radio button, and
try the query separate but equal. Your search results will include links to cases familiar to many of us in the U.S. such as Plessy v. Ferguson and Brown v. Board of Education,
which explore the acceptability of "separate but equal" facilities for
citizens at two different points in the history of the U.S. But your
results will also include opinions from cases that you might be less
familiar with, but which have played an important role.

The blog entry also has this populist proclamation:

As we worked to build this feature, we were struck by how readable and
accessible these opinions are. Court opinions don't just describe a
decision but also present the reasons that support the decision. In
doing so, they explain the intricacies of law in the context of
real-life situations. And they often do it in language that is
surprisingly straightforward, even for those of us outside the legal
profession. In many cases, judges have gone quite a bit out of their
way to make complex legal issues easy to follow. For example, in Korematsu v. United States,
the Supreme Court justices present a fascinating and easy-to-follow
debate on the legality of internment of natural born citizens based on
their ancestry.